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Democratic Compliance with Decisions of the International Court of Justice
Catherine Bratic
Rice University
Poli 475: Dr. Ashley Leeds
Presented 22 April 2010
Abstract: Although traditional compliance theory predicts higher rates of compliance with internationallaw in democracies, studies of compliance with decisions of the International Court of Justice does not
uphold such a correlation. However, the two areas of study can be reconciled by considering how a
democratic leaders political posturing in the lead-up to the courts ruling can polarize or tame a domestic
electorate, greatly influencing a countrys ability to offer concessions required to comply with the final
decision. While leaders who engage with and encourage a divisive political atmosphere appear unable to
backtrack from this politicization without risking an electoral backlash, it is also observed that leaders
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I. Introduction
Trends of compliance with the rulings of the International Court of Justice, (ICJ) the
United Nations court with jurisdiction to resolve disputes among member states, pose a
perplexing subject of study. Although compliance patterns for this world court conform in many
ways to traditional theories about state compliance with international law, ICJ compliance has
also bucked trends on some issues, confounding researchers and escaping a complete
explanation. The gaps in comprehension that exist so far indicate that our current understanding
of why states choose to comply with or defy ICJ judgments is limited.
One area that is particularly puzzling in current research is the role of democracy in
influencing compliance levels. Although traditional compliance research has consistently shown
that democratic states are more likely to comply with international law, ICJ compliance histories
have not reflected this correlation. This paper puts forward a theory that could explain why
democracies do not necessarily exhibit higher compliance levels than non-democracies. In short,
the unique domestic pressures which democratic leaders are subject to under electoral patterns
change the considerations that leaders make when deciding whether or not to comply with an ICJ
judgment. A leaders political posturing in either a hostile or favorable direction prior to the
decision of a case may irrevocably commit a leader to action before the final judgment is even
issued.
Traditional theories of compliance with international law do not necessarily extend
themselves to ICJ compliance issues. Other studies have found democracies to be more likely to
comply with international law than autocracies are. In the case of the ICJ, democratic predictors
do not apply; a democratic regime does not predict higher levels of compliance with ICJ rulings.
However, other findings of traditional compliance theory can still be useful as explanatory
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factors here. Due to the fact that the relationship between these two fields is complex, it is
important to first understand the unique questions posed over ICJ compliance. Once laid out, this
paper will consider the ways in which traditional compliance theory can contribute to the debate,
and in what ways its findings must be disregarded in order to examine other criteria that impact
ICJ compliance levels. It is found, in fact, that basic theory of compliance law continues to be
able to offer much insight to behavior in response to ICJ judgments. Although initial democratic
determinants do not hold true in this case, the behavior of democratic leaders that weigh
domestic electoral concerns when acting internationally offers an explanation of why the
behavior of democratic states is not so easily predictable.
Two hypotheses about disparate behavior of democratic leaders will be examined. First,
there are those democratic leaders who seek to engage with an electorate whose heated emotions
have led them to solidly espouse a radicalized view of the debate. In a second category are those
democratic leaders who try to distance themselves from any such domestic groups by presenting
and fostering a favorable view of the court that lends itself to the offering of future concessions
that compliance might require. I hypothesize and find it to be the case that leaders who
find themselves in the former situation are more likely to defy the courts judgments, while
leaders in the latter cases comply more often, more fully, and more eagerly.
Also encountered in this papers research was an unanticipated third set of cases, which
are marked by the absence of a polarized electorate, and one in which a leaders lack of public
political rhetoric imply a tacit acceptance of the courts activity. Taken together, these three
findings allow re-integration of ICJ compliance theory with traditional knowledge of state
compliance, and have the potential to inform measures intended to increase compliance with
international law.
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II. History of the ICJ and compliance with its judgments
The International Court of Justice at The Hague has developed an exceptional track
record since its inception in 1945. The Court, which is charged with settling legal disputes
between states and offering advisory opinions on legal matters, has boasted high levels of
compliance with its judgments, despite the contentious nature of its subject matter. All United
Nations member states are automatically under the jurisdiction of the Court due to stipulations in
the treaties they must sign to join the United Nations. Once party, states may call upon the Court
to resolve disputes with other states through a number of paths.
There are three procedural paths by which an issue or case may be brought to the ICJ.
Under the first procedural path, two states willingly present themselves before the court, seeking
resolution of a conflict. This first approach is typically considered to be most highly associated
with compliance, as states voluntarily accept the courts jurisdiction. The second procedure
through which cases can be put before the ICJ is clausal stipulation of compulsory ICJ
jurisdiction in international treaties. Although the inclusion of such clauses is becoming less
common as it is replaced by civil arbitration clauses that favor private civilian forums rather than
governmental ones, such cases still provide regular material for the ICJ. Lastly, the ICJ can be
called upon by states to provide advisory opinions on legal issues. Although compliance with
these opinions is not compulsory, their acceptance reflects the states view of the wisdom and
impartiality of the court.
As is inevitable in all contentious issues, states may frequently find themselves subject to
ICJ decisions with which they disagree or which are in some way viewed as unfavorable to the
state. Historically, states receiving such judgments from the ICJ have still exhibited relatively
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high compliance levels, suggesting the existence of a more complex calculation on the part of the
state than simply immediate self-interest.
Enforcement of ICJ judgments is notably difficult. The United States withdrew from the
ICJs compulsory jurisdiction in 1987. Rejection of the courts authority by such a major world
power has weakened the courts reputation and influence.1 Furthermore, the court lacks robust,
independent monitoring and enforcement mechanisms to reinforce its judgments, relying instead
on the arguably weak and political United Nations Security Council for such ends. In cases of
binding judgments, failure to comply can result in reprimands and sanctions doled out by the UN
Security Council. However, the Council is a non-neutral body, and one members veto can
prevent enforcement actions from proceeding. The reality is that most states have no reason to
fear that they will be subject to sanctions if they fail to comply immediately and fully with an ICJ
decision; the Council has not made it a practice to monitor compliance in the post-adjudication
phase, much less to go about determining culpability and penalties.
Given this background, it is surprising that the court has enjoyed very high compliance
levels in response to its judgments and even its non-binding advisory opinions. Most
estimates place compliance levels with binding rulings above eighty percent.2 Such a figure
should be unexpected, given that states face no negative (namely, punitive) incentives to abide
by decisions.
ICJ compliance poses two particular and complementary dilemmas. The first is the
question of why states ever comply with ICJ judgments, considering the almost complete
absence of enforcement mechanisms. The second question posed, which acts as the impetus for
1ColterPaulson, Colter.2004. Compliance with Final Judgments of the International Court of JusticeSince 1987,.
98 The American Journal of International Law. 98: 434-461 (2004).2, CONSTANZE SCHULTE, CONSTANZE. 2004 , . COMPLIANCEWITH DECISIONSOFTHE INTERNATIONAL COURTOF JUSTICE (2004) .
Oxford: Oxford University Press.
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this papers research, is that of why states ever defy ICJ judgments, given that they have agreed
in advance to be subject to the courts jurisdiction. Why would a state willingly refer a case to
the ICJ, only to defy the decision once it is reached? Though it is around this second question
that this paper is centered, it cannot be considered in absence of its stated counterpart.
III. Contributions of traditional compliance research
Traditional compliance theory has focused on a limited number of reasons why states
might be motivated to comply with international law. These explanations can be applied to both
of the previous questions: why states comply with judgments and why they defy them. When the
conditions of compliance theory motives are met, states are presumed to have motives to comply,
and when the conditions are not met, states are presumed to have motivation to defect.
Traditional compliance theory is useful to first consider here because it has proposed and
presented consistent findings that offer solid explanations of when states comply with
international law. Many of these explanations also apply to the ICJ. However, in the realm of
correlations between democratic forms of governance and compliance, there is a sharp
divergence. The examination of traditional compliance theory and the extent to which it can be
applied to the ICJ offer suggestions for how the democratic paradox of compliance can be
understood.
Markus Burgstaller, a scholar of international law and a legal adviser to Austria,
advances three reasons that might drive states to obey international law. Perhaps the most basic
reason is out of fear of punishment.3 If defiant behavior is subject to sanctions whose costs would
exceed the immediate benefits of defecting from an agreement or flouting an international ruling,
the state may still be reflecting its own self-interest when it complies. However, this is not a
3Markus Burgstaller, Markus,. 2007.Amenities and Pitfalls of a Reputational Theory of Compliance with
International Law,.76Nordic Journal of International Law. 76: 39-71 (2007).
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likely motivation in the case of the ICJ, as shown by the fact that mechanisms for enforcing its
judgments are virtually nonexistent.
Burgstallers second rationale for obedience is that a state may hold the belief that
compliance is in its best interest. Though this evaluation has many facets, it is essentially based
around the realist perspective that states are rarely induced to behave in ways that do not
correlate with their own best interests and those of the most powerful states.
George Downs, a professor at New York University, David Rocke, a professor at the
University of California Davis and Peter Barsoom, a PhD student at Princeton University take an
extreme view of this theory, suggesting that states only enter into shallow agreements with which
they already have motivation to comply.4 While this theory might explain why a state with a
strong case would proceed to the ICJ, it is certainly not a compelling explanation of compliance
with all of the cases that are found before the ICJ. After all, by nature, every case must have a
winner and a loser, so not all states can consistently receive favorable judgments. The very fact
that there are losers in ICJ rulings proves Downs, Rocke, and Barsooms assertions do not
provide a complete explanation of the behavior observed.
Another variation, deeply rooted in the theory that states always act in their own rational
interest, revolves around game theory. Although states may have material incentives to defect
from their obligations under international law, they may view that it is in the overall best interest
of themselves and the international community as a whole if everyone abides by their
commitments, even when the immediate effects of this compliance are negative.Because the UN
is the basis for the ICJ, states have a reasonable expectation that they will often interact with the
international community after the case has concluded. This demonstrates what James Fearon, a
4George W Downs, George W., David M. Rocke, and Peter N. Barsoom.1996.Is the Good News About
Compliance Good News About Cooperation? 50(3) International Organization. 50(3): 379-406 (1996).
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political science professor at Stanford, would call a large shadow of the future.5 The more
likely a states future interaction in a community is, the greater the incentive that the state has to
maintain a good standing in that organization. Since the enforcement mechanisms of
international law are horizontal rather than vertical that is to say that punishments are doled
out by other states more often than by supranational organizations reputational concerns are
of increased salience. Andrew Guzman, a professor at the University of California Berkeley
school of law fully develops a theory of how reputational concerns impact the decision to abide
by international commitments, concluding: If a country violates international law, other states
may refuse to enter into future agreements, demand greater concessions when entering into such
agreements, or lose faith in the strength of existing agreements.6
Reputational concerns are not a sufficiently motivating factor in all decisions, however,
as evidenced by occasional defections. Burgstaller finds that these incentives only act at the
margins of the decision to defect or not. When stakes are higher and states have significant
inducements to defect based on their own rational and material self-interest, reputational
concerns are simply not enough.
But reputational concerns are always a factor to some degree. In a study of the USs
historical decision-making processes, Michael Scharf finds a distinct reliance on international
law as real legal doctrine, in a partial rejection of realism. The United States has been historically
defiant toward the ICJ, so its motivations are particularly relevant. Scharf recounts how even in
cases that terminated in noncompliance, reciprocity and reputational costs of non-compliance
5James D Fearon, James D. 1998.Bargaining, Enforcement, and International Cooperation,.52 (2) International
Organization. 52 (2): 269-305 (1998).6Andrew Guzman, Andrew. 2002.A Compliance-Based Theory of International Law,.90 (6) California Law
Review. 90 (6): 1823-1887 (2002).
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were given great consideration.7 The case may be then, as Guzman believes, that although
reputational concerns are constantly in play, the stakes of certain disputes may be too high to be
affected by these considerations.8
These high-stakes issues are the ones which most interest the study of compliance with
ICJ judgments. Low-stake and low-salience issues have no compelling reason to incite defection.
(As illustrated by this very research, there are cases where the low domestic investment in the
dispute made no compelling demands upon leaders to engage in any way other than the tacit
expression of complicity.) Researchers of the court find themselves examining, over and over,
the cases in which the issue was just too important for a country to give in and comply with an
unfavorable ICJ ruling.
Lastly, Burgstaller says states may fully ignore a calculation of whether defection would
serve their interests because the norm of conforming to international law has become internalized
within the state. When fear of sanctions or a damaged reputation are not enough to motivate
compliance, states may nonetheless choose to comply with a ruling because the norms of
international law have been accepted and incorporated into the national psyche.
International cooperation scholar Judith Kelleys analysis of states responses to the US
demand for a nonsurrender agreement attached to the International Criminal Court provides
proof that the jurisdiction of international courts has been embraced as a norm in the
international community.9 In devising the implementation of this agreement, the US approached
other countries, pressuring them to sign an agreement to refrain from surrendering American
citizens to international courts without US consent. The debates within each country approached
7Michael Scharf, Michael. 2009.International Law in Crisis: A Qualitative Empirical Contribution to the
Compliance Debate, 31. Cardozo Law Review. 31: 45-97 (2009).8
Guzman.9Judith Kelley, Judith. 2007. Who Keeps International Commitments and Why? The International Criminal Court
and Bilateral Nonsurrender Agreements,.101 (3) American Political Science Review.101 (3): 573589 (2007).
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by the US over whether or not to sign are interesting because they were based almost entirely on
principles; the nonsurrender agreement was unlikely to be enforceable, so states would not hurt
the courts power by signing on. However, the vast majority of states refused, valuing the norm
of international justice above their immediate self-interests of avoiding punishment from the US.
Kelley shows that states valued adherence to commitments to the international court for their
own sake, absent of any tangible benefits., This value given to adherence itself conforms
perfectly with the traditional definition of a norm. 10,11 While this is unquestionably a valid
proposition that is likely a factor in many ICJ compliance casesparticularly the ones of states
who routinely and unhesitatingly comply with ICJ judgmentsit fails to explain the cases of
defection, where clearly norms are not internalized enough to ensure compliance. The cases of
defiance that are examined are ones in which norms if they even exist in the states were
clearly overruled by other considerations.
More generally, the fundamental norm that governs states actions in international law is
pacta sunt severanda, meaning that commitments must be fulfilled. International legal scholars
Antonia Chayes and Abram Chayes find that states value policy continuity above all as the most
efficient strategy.12 Any treaty that has been negotiated between states inherently represents each
states national interests, as they are formed further in the negotiating process. Demonstrating
continuity with these interests is useful both domestically in order to present an unwavering
policy record as well as internationally, as states feel obligated to maintain good standing in
international organizations by upholding their agreements.
10Robert Axelrod, Robert. 1986.An Evolutionary Approach to Norms,.80 (4) American Political Science Review.
80 (4): 10951111 (1986).11
Martha Finnemore, Martha and Kathryn Sikkink, Kathryn. 1998.International Norm Dynamics and Political
Change,. 52 (4) International Organization. 52 (4):887917 (1998).12
Abram Chayes,Abram and Antonia Chayes, . 1993. On Compliance,.47 (Spring) International Organization.47
(Spring): 175205 (1993).
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Assuming that these three influences are constant within a system, there is still an
observable difference in compliance rates between democratic and non-democratic countries.
Clearly there is something unique about a democratic state. These regimes are much more likely
to cooperate with international law, and this correlation between cooperation and democratic
governance has been found time and time again.13,14,15 Scholars have identified a handful of
explanations for this correlation, namely the importance of rule of law, accountability, and
domestic pressures within democracies. International legal scholar Brett Ashley Leeds has found
that democracies are able to make more credible commitments in negotiation processes because
they are held accountable by domestic interests that oppose any attempt to renege on past
commitments.16Similarly, American political scholar James D. Morrow has found that domestic
interests can also exert considerable political pressure on leaders to comply with international
norms. Because of their political structure, democracies tend to have a greater respect for the rule
of law,17and this domestically-established norm makes it politically costly for a leader to openly
defy international agreements.18 International legal scholars Todd Allee and Paul Huth found this
effect to often be overwhelming for a democratic leader, and suggested that there are cases in
which a democratic leader would like to offer concessions but is constrained by the publics
investment in the issue. In order to shelter oneself from domestic political backlash, a democratic
leader may instead choose to offer the case up to an international court.19 Through their research,
13James D. Morrow, James D. 2007. When Do States Follow the Laws of War? 101 (3) American Political Science
Review. 101 (3): 559589 (2007).14
Todd L Allee, Todd L. and Paul K. Huth. 2006.,Legitimizing Dispute Settlement: International Legal Rulings asDomestic Political Cover,r.100(2) American Political Science Review.100(2): 219234 (2006).15
Brett Ashley Leeds, Brett Ashley. 2003.Alliance Reliability in Times of War: Explaining State Decisions to
Violate Treaties,57(4). International Organization 57(4): 801827 (2003).16
Leeds.17
Judith Kelley, Judith. 2007.Who Keeps International Commitments and Why? The International Criminal Court
and Bilateral Nonsurrender Agreements,.101 (3) American Political Science Review. 101 (3):573589 (2007).18
Morrow.19
Allee and Huth.
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of these findings has even attempted to answer the question of why the established theory of
higher levels of democratic compliance cannot be extended to the ICJ.
Constanze Schulte, a scholar of the ICJ, has found that democratic states are no more
likely to be receptive to unfavorable ICJ judgments.26These findings are further supported by the
work of Sarah McLaughlin Mitchell and Paul Hensel, two scholars of international
cooperation .27 The lack of correlations found by Schulte and Mitchell and Hensel occur despite
the fact that studies of compliance in general have found the type of government to greatly
influence responses to legal rulings,28and serve an important reminder of the way that ICJ
judgment compliance records differ from compliance records of treaties and regulations.
Unfortunately, the current analyses of domestic conditions fail to consider why a single
state may comply with one ICJ judgment but not another, although its democratic status remains
unchanged. Because a constant, democratic form of government is unable to explain this
variation, other shifting domestic considerations must be examined, and the type of governance
changes to a control variable. Examining only the cases of democracies, where no predicting
effect has been observed, the cases must be separated to find what factors do indeed distinguish
the democratic leaders who choose to comply from the democratic leaders who do not choose to
comply.
States accepting the ICJs jurisdiction do not have full information about how their future
interests will affect their ability or desire to comply, because their commitment is an agreement
to be bound by any range of judgments that might occur at unspecified times and against
26Schulte.
27Sarah McLaughlin Mitchell,Sarah McLaughlin and Paul R. Hensel. 2007. International
Institutions and Compliance with Agreements. 51 (4) American Journal of Political Science. 51(4): 721737 (2007).28
Xinyuan Dai, Xinyuan. 2006.The Conditional Nature of Democratic Compliance,.50 (October) Journal of
Conflict Resolution. 50 (October): 124 (2006).
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unspecified parties. In this sense, compliance with the rule of the ICJ demands a lot from states.
These states must agree to fully comply with any judgment the court will make in the future,
regardless of which country hales them before the court or what judgment the court will make.
Without the full knowledge of the circumstances they will face, states must make a leap of faith
in accepting the ICJs jurisdiction.
V. Argument
In the selected cases of judgments which were unfavorable to the party not exhibiting full
compliance, states clearly received a judgment that they were not hoping for. In cases of
noncompliance, the threat of international punishment and reputational concerns were clearly not
enough to induce compliance. Particularly in democracies, political leaders must think about
domestic support for all of their actions. If leaders lose that domestic support, they risk losing
political power and their offices. Under what conditions, then, will democratic leaders have
domestic incentives to comply with an unfavorable judgment?
According to international legal scholar James Fearon, a states prior posturing can exert
one of the greatest influences on behavior.29 Fearon finds that backing down from prior rhetoric
is surprisingly costly. In addition to the standard price that leaders must pay for concession on
the issue itself, they also face additional costs: physical costs for any backtracking that must
occur, such as the demilitarization of areas and the restoration of damaged bilateral relations, and
audience costs for engaging the national honor only to abandon it. When leaders raise an issue to
national consciousness, clearly positioning the state in one direction or another, they give their
opponents the chance to bemoan the loss of international face when they retreat from this
position.
29James D. Fearon, James D. 1994.Domestic Political Audiences and the Escalation of International Dispute,s.88
(3)The American Political Science Review. 88 (3). 577592 (1994).
http://www.jstor.org/action/showPublication?journalCode=amerpoliscierevihttp://www.jstor.org/action/showPublication?journalCode=amerpoliscierevihttp://www.jstor.org/action/showPublication?journalCode=amerpoliscierevi -
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VI. Hypotheses
This paper expects to find that, for leaders who have raised the particular dispute to the
level of the national consciousness, retreating from the strong positions initially put forth in order
to offer required concessions may be too costly to consider.
The attitude of a states leader can have impressive effects on a countrys psyche as
determined by the powerful electorate. Leaders particularly democratic ones can risk
becoming so buried in political rhetoric that they are unable to backtrack from a combative
stance in order to offer the concessions necessary for compliance.
Hypothesis 1 (H1): States whose leaders have used extreme political rhetoric to
tie their political reputations to the outcome of the dispute will be less likely to
offer compliance to ICJ demands for concessions.
The degree of political entrenchment can be measured by the leaders remarks, but also
through material threats unrelated to the Court itself. If a leader has previously threatened
military escalation of the conflict or has otherwise expressed that the state is willing to take any
means necessary to defend its position, the leader may be said to be more politically entrenched
in the conflict. This effect is ever the more increased if the leader has expressed hesitance in the
ICJs discriminating abilities.
Leaders are of course free to backtrack from combative or divisive remarks. However,
they may risk their electoral backing when doing so, in an over-cooperation effect examined by
political scientist Michael Colaresi.30 In fact, dovish leaders who are more willing to offer
cooperation can be easily ousted by hawkish leaders who will not make such concessions, and
30Michael Colaresi, Michael. 2004.When Doves Cry: International Rivalry, Unreciprocated Cooperation, and
Leadership Turnover, 48(3) . American Journal of Political Science. 48(3): 555570 (2004).
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This papers research will expand upon these pronouncements by considering the difference
between the cases of compliance and defiance already established.
The majority of the data needed to make the distinctions needed to test H1 and H2 can be
gained from a leaders public remarks. Since one can assume that the leader does indeed have a
message to convey, the tone of that leader should be readily discernible. Rhetoric that is
favorable to the Court expressing confidence in its judiciousness and reiterating the states
eagerness to comply with the Court in order to receive a fair resolution of a conflict can be
interpreted as preparing the electorate to accept the Courts legitimacy and offer any needed
concessions. Through the examination of news reports, articles published around the time of the
judgment, and public statements issued before and after the Courts ruling, this paper will verify
whether cases of compliance and noncompliance differ according to the conditions of its
hypotheses.
VIII. Data
This paper has drawn from the cases and compliance studies performed by Schultz in
Compliance with Decisions of the International Court of Justice, which include a full list of
contentious cases that have come before the court since it began its work in 1946 and which
examined substantive legal issues and issued binding decisions. This paper determines that the
only applicable international procedures to consider are those cases which demanded substantive
compliance, and so eliminates cases which asked instead only that parties continue negotiations.
Finally, as the hypotheses being considered relate only to the official responses of democratic
states, the cases considered were further reduced to those in which the losing state was a
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democracy, as judged by data from the Polity IV data set, which measures the type of
governance since 1800 in all world nations.32 The final set of fourteen cases is shown in Table 1.
Case Date States involved
Rights of Nationals of the USA in Morocco 1952 France (Morocco),USA
Ambatielos 1953 Greece, UK
Minquiers and Ecrehos 1953 France, UK
Sovereignty over Certain Frontier Land 1959Belgium,Netherlands
North Sea Continental Shelf 1969Germany,Denmark,Netherlands
Fisheries Jurisdiction 1974 UK, Iceland, FRG
Delimitation of the Maritime Boundary in the Gulf ofMaine Area
1984 Canada, USA
Military and Paramilitary Activities in and againstNicaragua
1991 Nicaragua, US
Land, Island, and Maritime Frontier Dispute 1992El Salvador,Honduras
Maritime Delimitation Greenland and Jan Mayen 1993 Denmark, Norway
Gabcikovo-Nagymaros Project 1997 Hungary, Slovakia
Kasikili/Sedudu Island 1999 Botswana, Namibia
LaGrand 2001 Germany, US
Arrest Warrant of 11 April 2000 2002 Belgium, DRC
Table 1: Cases considered
In the majority of the cases, the ICJ issued a ruling which indicated a clear loser in the
dispute, in which one state was required to make concessions that were either unilateral or
significantly greater than those demanded of the other state.33 In a select few cases (Rights of
Nationals of the USA in Morocco, Delimitation of the Maritime Boundary in the Gulf of Maine
Area, Denmark, weak), the judgment weighed heavily enough on both parties that full and
complete compliance could only be accomplished through the cooperation of the parties. In these
cases, both sides are considered to be losers in the dispute, noting if one side was slightly more
disadvantaged by the ruling.
32M. G. MARSHALL,M. G. AND & K. JAGGERS,. 2004. POLITY IV PROJECT: POLITICAL REGIME CHARACTERISTICSAND
TRANSITIONS, 18002002 (2004).. University of Maryland, College Park.33
The determination of the losing state was made after reading the judgments issued directly by the ICJ, which
can be accessed at www.icj-cij.org/docket/index.php?p1=3&p2=2. 22 April 2010. Unknown source type?
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Actual compliance with the judgment was taken from Schultes case descriptions. Past
studies of compliance show that a countrys response is best viewed not as a dichotomous
measure of total compliance or outright defiance, but as a spectrum of cooperative behavior.
However, such a measure is of course not conducive to a research endeavor such as the one at
hand. As Paulson did in his studies of compliance, this paper includes a third option of medium
compliance between high compliance and low compliance in order to balance these two
extremes. The highest valuation was assigned to countries who immediately moved to comply
fully with the judgment, and whose compliance was eventually fully achieved. The medium
compliance level was assigned to countries that publicly stated their acceptance of the courts
judgment, but whose compliance was not fully achieved in a timely manner, due to either to
problems of implementation or internal hesitance on the states part. Finally, the lowest
compliance rating was assigned to countries that explicitly rejected the validity of the decision
and/or made no efforts to comply with its terms. The compliance assessments for each of the
losing states are shown in Table 2.
Case LoserCompliancelevel
Rights of Nationals of the USA in Morocco France (USA) High
Ambatielos UK High
Minquiers and Ecrehos France High
Sovereignty over Certain Frontier Land Netherlands High
North Sea Continental ShelfDenmark,Netherlands
High
Fisheries Jurisdiction Iceland Low
Delimitation of the Maritime Boundary in the Gulf ofMaine Area
US, Canada High
Military and Paramilitary Activities in and againstNicaragua
US Low
Land, Island, and Maritime Frontier Dispute El Salvador Medium
Maritime Delimitation Greenland and Jan MayenDenmark(Norway)
High
Gabcikovo-Nagymaros Project Hungary Medium
Kasikili/Sedudu Island Namibia High
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LaGrand US Medium
Arrest Warrant of 11 April 2000 Belgium High
Table 2: Compliance by losing states
Finally, the leaders responses through publicly issued statements and other expressions
of the countrys opinion of the court were collected and measured. Whenever possible, these data
were gathered through news reports that were published at the time of the dispute. This task was
much more easily accomplished in recent cases, as the role of the international press has
increased and been facilitated by increased technological exchanges. When news reports
containing a leaders remarks were not available, papers written on the dispute and the courts
decision in the years surrounding the cases were referenced. This endeavor was limited in some
respects by language barriers; coverage in English-language press often hinged on the publishing
countrys interest in the countries involved in the dispute, and research did not extend to any
foreign-language press. Contemporary references to historical cases were avoided in order to
preserve the historical context as much as possible.
The countrys official response has been assessed as either positive or negative in each
case, for the purposes of simplification of measures. However, additional notes have been
included and abbreviated case studies have also been produced in order to more fully
communicate the variance and details of the position espoused.
CaseCompliancelevel
Attitude of leade
Rights of Nationals of the USA in Morocco High Support of court
Ambatielos High Support of court
Minquiers and Ecrehos High Support of court
Sovereignty over Certain Frontier Land High Support of court
North Sea Continental Shelf High Support of court
Fisheries Jurisdiction LowRejection of courtlegitimacy
Delimitation of the Maritime Boundary in the Gulf ofMaine Area
High Support of court
Military and Paramilitary Activities in and againstNicaragua
LowHostile to allInternational actio
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Land, Island, and Maritime Frontier Dispute Medium Support of court
Maritime Delimitation Greenland and Jan Mayen High Support of court
Gabcikovo-Nagymaros Project MediumPandering, hostileresolution
Kasikili/Sedudu Island High Support of court
LaGrand Medium Indifference toproceedings
Arrest Warrant of 11 April 2000 High Support of court
Table 3: Compliance and attitude of leaders
IX. Abbreviated case studies34
1. Rights of Nationals of the United States of America in Morocco: This case concerned
itself with the special privileges claimed for American citizens in Morocco, which was still
controlled by France at the time, as part of extended consular jurisdiction established by the
United States. Also at issue were certain economic policies of France that seemed to unfairly
advantage French citizens over American ones. The two countries had unsuccessfully attempted
to negotiate a settlement, and France filed unilaterally before the ICJ to attempt a diplomatic
resolution. The United States never objected to the application to the Court. Although the United
States initially filed a series of objections to the merits of the case, it demonstrated a deep-seated
respect for the courts judgment by withdrawing these objections once the court had rejected
them procedurally.35 The United States executive branch engaged in favorable court rhetoric36
and took action domestically to soften the initially harsh reactions favored by the US Senate.37
France, for its part, tread lightly and tried to present itself as an advocate for Morocco rather than
as an independent party objecting directly to American actions, both fearing damage to relations
34Much of the background material is taken from the case summaries presented by Schulte in Compliance with
Decisions of the International Court of Justice. Does this need a full citation?35
Bin Cheng, Bin. 1953.Rights of United States Nationals in the French Zone of Morocco,.2 (3)The International
and Comparative Law Quarterly. 2 (3): 354367 (1953).36
US Counter-memorial, ICJ Pleadings, Rights of Nationals of the United States of America in Morocco. judicial
settlement will not only promote a just decision satisfactory for both parties, but will also contribute to the
development of the tradition of law and order of which both the United States and France desire to promote I think
this should be included in the paper and a citation placed here.37
Richard Young, Richard. 1957. The End of American Consular Jurisdiction in Morocco,.51 (2) The American
Journal of International Law. 51 (2): 402406 (1957).
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with the United States38and remaining wary of stirring up pro-independence sentiments in its
African colonies.39,40 Compliance with the courts final judgment, which found fault in both of
the states actions, was swift and complete.
2. Ambatielos: At issue was whether or not the United Kingdom was obligated to submit
a dispute between its government and a Greek national to arbitration. After the ICJ ruled that
arbitration must proceed, the UK ended its objections and immediately complied. Although the
UK filed objections to the courts jurisdiction and claimed non-exhaustion of domestic remedies,
the case remained a focus of the government alone.41 As the complaint was against the actions of
the government itself and did not concern territory or rights which might have an impact on
domestic interests, this confinement of scope was easy to achieve. The lack of British domestic
investment in the dispute meant that the British government could confine its focus to legal
issues alone without allowing the case to turn political.42
3. Minquiers and Ecrehos: In the course of long-running negotiations, the United
Kingdom and France agreed to submit to the ICJ a dispute over fishing rights on islands in the
British Channel. The courts ruling, assigning exclusive rights to the UK, was in many ways
redundant, since the parties continued negotiating during the proceedings and independently
reached an agreement between submission of the case and the issuance of the courts decision.
Although the conflict in this state was longstanding, relations between the two states were
excellent; the dispute was never presented nor interpreted as a diplomatic conflict between the
38Kurt H.Nadelmann, Kurt H.Reprisals against American Judgments?65 (7)Harvard Law Review.65 (7): 1184
1191 (Year?).39
U.S. Test With France in Morocco Comes to Hearing in World Court; Washington and Paris, in Open Sessions at
The Hague, Will Both Try to Avoid Roiling North African Feelings, . THE NEW YORKTIMES, July 13, 1952. The NewYork Times.40
Paris Says U.S. Hurts Moroccan Interests. , THE NEW YORKTIMES, July 17, 1952.The New York Times.41
D. H. N. Johnson, D. H. N. 1956.The Ambatielos Case,.19 (5)The Modern Law Review.19 (5): 510517(1956).42
World Court Gets 34-Year Ship Case; Greek Buyer Of 1919 Surplus Vessels Is Backed By Athens In His Suit
Against Britain,. THE NEW YORKTIMES, March 31, 1953. The New York Times., at19.
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two nations but rather, was seen as an attempt to resolve the disagreements between individual
fishermen of each country. It was a purely local problem, as Schultz said, and the UK itself
referred to the islands in contention as only a few rocks.43 The French concurred, saying they
had no risk to wish difficulties with Britain just for the sake of two islands.44Referral to the
ICJ represented not an escalation, but another procedural path working toward inevitable final
resolution.45
4. Sovereignty over Certain Frontier Land: The dispute between the Netherlands and
Belgium over a shared border was, like the Minquiers and Ecrehos case, one in which local
emotions dominated.
46
Tensions were even higher between the locals living at the border of these
two nations, spilling into the greater political discourse and threatening the planned furtherance
of economic relations between the two states. Although many domestically acted as though vital
national interests were at stake,47 in the merits of the case the dispute was frequently described
as ridiculous.48 The court ruled overwhelmingly in Belgiums favor, and full compliance was
provided by the Dutch.
5. North Sea Continental Shelf: Germany faced Denmark and the Netherlands in two
individual disputes over a shared maritime boundary. In the course of delimitation of the
boundary between the three countries, the criteria for measurement became an issue. The court
43Papal Monition On Piracy :To Bolster Claim to Oyster-Beds,.THE MANCHESTER GUARDIAN,September 17, 1953.
The Manchester Guardian.44
Royal Appetites For Channel Islets: French Case at The Hague,.THE MANCHESTER GUARDIAN, September 29, 1953.
The Manchester Guardian.45D. H. N. Johnson, D. H. N. 1954. The Minquiers and Ecrehos Case,.3 (2) The International and Comparative
Law Quarterly.3 (2): 189216 (1954).46
It was a situation which received little national, but great local, attention, and it had to be solved quickly.
Schultz.47
Walter H Waggoner, Walter H. August 10, 1957.A Tax-Free Enclave of 30 Acres Contested by Belgians and
Dutch; Question of Monarchy Status Is Slated to Be Argued. Before Hague Tribunal. THE NEW YORKTIMES,.
August 10, 1957, at 3.48
Verzijl, J. H. W. 1966. The jurisprudence of the World Court, A Case by Case Commentary, Vol. 2 (The
International Court of Justice). Leyden.
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repeatedly referred to the dispute as being a matter of life or death 52 for the country, and
encouraged passage of laws referring to the need for exceptional measures to benefit
conservation needs.53 As the dispute with the UK and the FRG escalated, the Icelandic
government continued to pass numerous laws supporting its position far more than were
necessary to enshrine its views. Although the practice was carried out by a new government, it
fell into a longstanding tradition of successive administrations trying to outdo their predecessors
in the protection and promotion of the Icelandic fishing industry.54Compliance in this case was
never achieved or even attempted by Iceland.
7. Delimitation of the maritime boundary in the Gulf of Maine area: Facing a
disagreement over the maritime boundary, heightened by the high investment of fishers in both
countries, the United States and Canada agreed to jointly submit a matter of overlapping
jurisdictional claims to the ICJ. The court was given the authority to decide the boundary in the
case, and it ultimately determined that the boundary lied perfectly evenly between the two
claims. This equitable division followed the pattern of amicable relations that was sustained
throughout the proceedings. The two states both faced pressure from domestic fishing lobbies,55
so submission to the Court was a way for domestic politicians to have the matter settled without
having to bear the political responsibility for the result and to face the reproach of their
constituents.56 Although negotiations had been attempted many times before, their ultimate
success was seen as unlikely, and most agreed that additional measures would be needed to
52Comment by Icelandic Foreign minister Einar Agustsson, as quoted in The High Seas: The War for Cod.
December 29, 1975. Time.53
Evans, Alona E. 1975. Fisheries Jurisdiction Case (United Kingdom v. Iceland). ICJ Reports, 1974, p. 3.The
American Journal of International Law. 69 (1): 154174.54
Churchill, R. R. 1975. The Fisheries Jurisdiction Cases: The Contribution of the International Court of Justice to
the Debate on Coastal States Fishery Rights. The International and Comparative Law Quarterly. 24 (1): 82105.55
Knight, Michael. July 5, 1979. U.S.Canada Treaty Faces Senate Fight; Domestic Fishermen Oppose Pact Setting
Boundaries Off Maine Some Senators Listen Opposed by Booming Industry Denounced by Pell Regulation andQuotas Retaliatory Bars. The New York Times. A12.56
Schulte p. 174.
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Jeane Kirkpatrick dismissed the court as a semi-legal body that did not deserve full respect.61
After the ICJ ruled that the USs behavior violated international law and ordered that it pay
reparations to Nicaragua, the United States continued its defiance, refusing to comply and
repeatedly using its veto position on the UNs Security Council to block any attempts to force
compliance.
9. Land, Island, and Maritime Frontier Dispute: For decades, El Salvador and Honduras
found themselves locked in a dispute over a land boundary that dated back to colonial times. The
conflict, which was marked by occasional violence by citizens and even full-scale military
involvement, was called the soccer wars when it turned bad.
62
Although negotiations had
continued on and off for decades, it was not until Nicaragua intervened in the matter that the case
came before the ICJ. Both states were publically supportive of the courts jurisdiction, though
they disagreed on the exact issues to be examined. While the ICJ proceedings continued without
hiccups, the case maintained a highly political nature for a number of reasons. To begin with, the
area in question was populated by thousands of farmers who had strong views on their national
allegiance.63 Furthermore, both countries were led by recently-elected presidents who were
motivated primarily to find early boosts to their reputations in fact, when a verdict was issued,
the El Salvadorean president immediately seized upon the chance to champion his peaceful
resolution of an enduring dispute. Finally, El Salvador and Honduras were at the time embroiled
in a number of other disputes with one another, so it was difficult to refrain from contributing to
a perceived linkage between the many issues.64The courts ruling did not fall completely evenly
on both parties Honduras received two-thirds of the disputed land and El Salvador was
61Taylor, Stuart. Nicaragua Tells World Court that Reagans statements convict the US. May 7, 1985. The New
York Times.62
A Win in the World Court. October 6, 1992. The New York Times.63
Ibid.64
Excerpts from Latin Leaders Agreement. December 13, 1989. The New York Times.
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assigned one-third yet both parties were hesitant to offer full compliance. Both states dragged
their feet in compliance, citing obstacles of practicality and cost and accusing the other of
noncompliance. However, the ruling was never explicitly rejected or defied by either state, with
both choosing instead to attempt to portray their own state as the sole compliant party.
10. Maritime delimitation: Greenland and Jan Mayen: Norway and Denmarks case
before the ICJ concerned a twenty-year-old dispute over continental shelf boundaries and fishing
rights in the area around Greenland. In extending exclusive fishery zones between two
separately-controlled islands, leaders of both countries emphasized the economic dependence of
their coastal citizens on the fishing trade. Denmark appealed unilaterally to the court after
bilateral negotiations proved fruitless. Although Norway never objected to the courts
jurisdiction in the case, it expressed hesitance over any possible attempt by the court to draw
national boundaries. However, the court did indeed decide to do so, slightly to Norways favor.
From the start of proceedings, both parties expressed strong respect from the court. Since the
islands in contention were uninhabited, there was little risk of stoking local emotions.65 Strong
relations between the countries contributed to what was widely seen as an amicable case that
stayed out of public political rhetoric, and after the judgment was issued, the parties continued to
negotiate in order to reach a similar but more personalized agreement.
11. Gabcikovo-Nagymaros Project: A cooperative agreement between Hungary and
Czechoslovakia which later became Slovakia to construct locks on the Danube that would
facilitate development suddenly became highly contentious when domestic opposition in
Hungary to the project became overwhelming. Hungary decided to unilaterally abandon its
portion of the project, leaving Slovakia with a partially-completed structure and a defunct
65Charney, Jonathan I. 1994. Maritime Delimitation in the Area between Greenland and Jan Mayen. The American
Journal of International Law. 88 (1): 105109.
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agreement. Under intense pressure from the European Community, to which both countries
aspired for membership, Hungary and Slovakia jointly submitted the matter to the ICJ.66 When
speaking to or in reference to the European Community, both countries made themselves appear
supportive of the courts role. However, a different picture was painted domestically. In many
ways, the dispute between ecologists and engineers became a stand between Communism and
democracy to which Hungary was newly-converted.67 The environmental attention to the
issue demanded by Hungarian protestors became thus a test of the success of democratic
government in the state,68while the dam project itself represented the faulty ways of old
Communist governance.
69
In Slovakia, the government set up a propaganda website in support of
their perspective,70 and took to the international press to plead their cause.71 Although leaders of
both countries later backed down from these extremist perspectives,72 the citizenry remained
polarized.73 When the court ruled that Hungary (and, to a lesser extent, Slovakia) had acted
improperly and sent them back to negotiations, leaders in both countries found it difficult to
reign in a riled up domestic political audience to support the issuance of any concessions.
Negotiations continue to this day, but no progress has been achieved.
12. Kasikili/Sedudu: The young democracies of Botswana and Namibia were given a
chance to prove their commitment to international legal principles in the case of disputed control
over an island. The two states were fortunate in their condition, which was marked by much
common ground: the states agreed both on the applicable treaty and on the interpretation of its
66
Palmer, John. April 8, 1993. Hungary and Slovakia agree to take dam row to world court. The Guardian. 12.67Thorpe, Nick. April 11, 1993. On the Danube's banks, villages dry up: Asvanyraro. The Observer. 20.
68Bohlen, Celestine. December 5, 1990. GABCIKOVO JOURNAL; On The Danube, Unbuilt Dams But Pent-Up
Anger. The New York Times.69
Hungary Moves to Abandon Dam Project on the Danube. May 13, 1989. AP.70
Still available at www.gabcikovo.gov.sk/tlac.htm#googtrans/sk/en 21 April 201071
Hungary Participates In Danube Project. November 21, 1992. The New York Times.72
Hungarians Ease Stand Over Dam. August 29, 1991. The New York Times.73
Accord Signed to Dam Danube; Protest Rally Is Held in Budapest. March 1, 1998. The New York Times.
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radical new law since its passage. The law was passed by the Belgian parliament, but it was
criticized by members of the Belgian executive. After courts were immediately inundated with
claims from around the world, many began to rethink the law.78Foreign minister Louis Michel
decried the law as opportunistic, and many others were embarrassed by the image of Belgium
that was presented by the law.79 As leaders quickly found out, the law also posed problems for
international relations. Firstly, states whose leaders were accused in Belgian courts took
particular offense; the Belgium foreign ministry had to work overtime to repair relations with the
DRC after the arrest warrant in this case was issued, and worked to publicly reiterate the
importance that Belgium placed on its membership in the international community.
80
Additionally, Belgian leaders faced external pressure from the US and other allies who were
concerned about the extended jurisdiction that the law asserted to curtail the scope of the law or
eliminate it entirely.81 The ruling thus gave Belgian leaders the perfect opportunity to abandon
the law without distancing themselves from the lofty human rights ideals that had initially
motivated its passage.Compliance was immediate and faced no challenges.
X. Conclusion
These case studies reveal that the majority of cases fall into a particular patter of leader
behavior which has a determining outcome on compliance in the case. To begin with, it is
evident such cases as Fisheries Jurisdiction, Military and Paramilitary Activities in and around
Nicaragua, and Gabcikovo/Nagymaros project that the way in which the executive engaged with
the issue as a political project increased the overall polarity of the dispute. In these cases, the
associated low compliance levels that resulted indicate a correlation between this politically-
78Simons, Marlise. December 27, 2001. Human Rights Cases Begin to Flood Into Belgian Courts. The New York
Times.79
Belgium bans Sharon war crimes trial. June 26, 2002. BBC.80
Belgiums diplomatic storm with Congo. July 11, 2000. BBC.81
Bernstein, Richard. April 1, 2003. Belgium Rethinks Its Prosecutorial Zeal. The New York Times.
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tinged rhetoric and compliant behavior. However, it is clear that an issues domestic salience
need not imply this correlation with low compliance; in other cases, the steps taken by leaders to
actively distance themselves from the political drama within their countries and increase the
perception of the courts authority were correlated instead with high compliance rates. Cases
expressing this position include Rights of Nationals of the United States of America in Morocco,
Sovereignty over Certain Frontier Land, and Arrest Warrant of 11 April 2000.
From these case histories, it is clear that the correlations described in both of the
hypotheses hold true. However, this relationship does not definitively determine causality,
leaving open the possibility that an unconsidered factor influencing compliance would inform
leaders, encouraging them to shift their rhetoric in order to align with the countrys future
position. Such a factor, however, would have to be discernible to the leaders themselves, and a
factor of this sort has to date not been proposed.
In addition to the two conditions described in the hypotheses, a third pattern was
observed: one of complete detachment of political rhetoric from court proceedings. In these cases
such as Ambatielos, Maritime Delimitation Greenland and Jan Mayen, and Kasikili/Sedudu
Island there was virtually no investment of the domestic population in the issue. In these
cases, leaders had no motivation either to lend support or attempt to counteract the emotions of a
domestic constituency. In these specific cases, leaders felt a natural desire to resolve the issue
and comply with international law a product of internalization of norms, if not fear of
international retribution. However, the leaders had no need to justify these desires to their
electorates. Equally, actions expressing hesitance to invest in the court would have been
unfounded.
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It appears to be the case, then, that the inconsistent compliance record observed in
democracies in ICJ cases is a result of a democratic leaders unique relationship with his
electorate, one that is not shared with the leaders autocratic counterparts. The risk of retributive
electoral effects force a leaders rhetoric to align with the states behavior in response to court
rulings, either by counteracting local emotions to support compliance with international law or
by stoking these fires to presage cooperative difficulties.
This correlation has important implications for those who study world courts as well as
for the courts themselves. If a democratic states behavior is capable of prediction before a ruling
is issued, the international community may be able to tailor their responses in order to find the
most accessible solution for the country, one that may possible allow a leader in a politicized
situation to save electoral face. In other cases, the international community can rest assured that
compliance is likely to be offered.
From a scholarly perspective, this finding allows us to reconcile the disparate pictures
that had previously been painted of compliance theory in general and compliance specific to ICJ
judgments. The integration of these two theoretical backgrounds contributes to a more complete
understanding of ICJ compliance and international cooperation more generally.
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